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HomeMy WebLinkAboutSideshow Network Inc dba Marcom Interactive; 2007-01-26;AGREEMENT FOR WEB SITE PRE-PRODUCTION PLANNING AND CONSULTING SIDESHOW NETWORK, INC., doing business as MARCOM: INTERACTIVE THIS AGREEMENT is made and entered into as of the c day of un MA , . 20cTl . by and between the CITY OF CARLSBAD, a municipal corporation, (City*)? and Sideshow Network, Inc. doing business as Marcom: Interactive ("Contractor"). RECITALS City requires the professional services of a professional web consultant. Contractor has the necessary experience in providing these professional services, has submitted a proposal to City and has affirmed its willingness and ability to perform such work. NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, City and Contractor agree as follows: 1. Scope of Services. City retains Contractor to perform, and Contractor agrees to render, those services (the "Services") that are defined in Exhibit "A", attached and incorporated by this reference in accordance with the terms and conditions set forth in this Agreement. 2 Term. This Agreement will be effective for a period of 1 year from the date first above written. The agreement can be extended for two additional one-year terms with the consent of both parties. 3. Compensation. The total fee payable for the Services to be performed will be five- thousand dollars ($5,000.00). No other compensation for the Services will be allowed except for items covered by subsequent amendments to this Agreement. City reserves the right to withhold a ten percent (10%) retention until City has accepted the work and/or the Services specified in Exhibit "A." 4. Status of Contractor. Contractor will perform the Services as an independent contractor and in pursuit of Contractor's independent calling, and not as an employee of City. Contractor will be under the control of City only as to the results to be accomplished. 5. Ownership of Work(s). The term "Works" include, but are not limited to editorial drafts, original copy, photographs, proofs, corrected proofs, camera-ready boards and similar editorial materials and all negatives, flats, engravings, photostats, drawings and other production materials prepared by Contractor in the performance of this Agreement shall be the property of City from the moment of its preparation, and Contractor shall deliver such materials and documents to City. For IT procurements Works include, but are not limited to executable code, source code, fixes, patches, updates, upgrades, documentation embedded or otherwise, original copy, and other production materials. Works does not include such items which are specifically identified by Contractor as proprietary trade secrets at the beginning of Contractor's performance. Contractor shall have the right to make duplicate copies of such materials and documents for its own file or for other purposes the City may agree as to in writing. City Attorney Approved Version #04.04.02 6. Titles and Copyright Assignment. Contractor and City intend this to be an Agreement for Services and each considers the deliverable product (Works) and results of the Services to be rendered by Contractor hereunder to be a work made-for-hire. Contractor acknowledges and agrees that the Works (and all rights therein, including, without limitation, copyright) belongs to and shall be the sole and exclusive property of City. If for any reason the Works would not be considered a work made-for-hire under applicable law, Contractor does hereby sell, assign, and transfer to City, its successors and assigns, the entire right, title and interest in and to the copyright in the Works and any registrations and copyright applications relating thereto and any renewals and extensions thereof, and in and to all works based upon, derived from, or incorporating the Works, and in and to all income, royalties, damages, claims and payments now or hereafter due or payable with respect thereto, and in and to all causes of action, either in law or in equity for past, present, or future infringement based on the copyrights, and in and to all rights corresponding to the foregoing throughout the world. If the Works is one to which the provisions of 17 U.S.C. 106A apply, the Contractor hereby waives and appoints City to assert on the Contractor's behalf the Contractor's moral rights or any equivalent rights regarding the form or extent of any alteration to the Works (including, without limitation, removal or destruction) or the making of any derivative works based on the Works, including, without limitation, photographs, drawings or other visual reproductions or the Works, in any medium, for City purposes. Contractor agrees to execute all required documents and to perform such other proper acts, as City may deem necessary to secure for City or its designee the rights herein assigned. 7. Indemnification for Intellectual Property Infringement. Contractor agrees to defend, indemnify and hold harmless City, its elected officials, employees and agents from and against any claim, action, proceeding, liability, loss, damage, cost or expense, including, without limitation, reasonable attorneys' fees, as provided herein, arising out of any claim that the Contractor's Works, products, services and/or deliverables, or any part of them, infringes upon or otherwise violates any copyright, trade secret, trademark, service mark, patent, invention, proprietary information, or other rights of any third party, or that City's use of them otherwise violates this Section [collectively referred to for purposes of this Section as "Infringement Claims(s)"], by paying all amounts that a court finally awards or that Contractor agrees to in settlement of such Infringement Claim(s), as well as any and all expenses or charges arising from such Infringement Claim(s), including reasonable attorneys' fees, as they are incurred by City or any other party indemnified under this Section. City also agrees that, if the use or operation of the Contractor's Works, products, services and/or deliverables, or any part of them, becomes, or in Contractor's opinion is likely to become, the subject of an Infringement Claim(s), City will permit Contractor, at Contractor's option and expense for all associated costs, either to procure the right for City to continue to use Contractor's Works, products, services and/or deliverables, or part thereof, or to replace or modify them with another item of comparable quality and performance capabilities to become non-infringing, provided such replacement or modification does not cause the product, services and/or deliverables, or any part thereof, to fail to comply with any of the requirements of this Agreement, including but not limited to, all functionality, technical specifications and performance warranties. City Attorney Approved Version #04.04.02 In the event City's ongoing use of Contractor's Work's, products, services and/or deliverables, or any part of them, is the subject of any act by a third party arising from an Infringement Claim that would preclude or impair City's use of Contractor's Works, products, services and/or deliverables (e.g., injunctive relief), or if City's continued use of them may subject it to punitive damages or statutory penalties, City shall give written notice to Contractor of such fact(s). Upon notice of such facts, Contractor shall procure the right for City to continue to use the Works, products, services and/or deliverables, or part thereof, or replace or modify the Works, products, services and/or deliverables of comparable quality and performance capabilities to become non-infringing. If Contractor fails to complete the remedial acts set forth above within forty-five (45) calendar days of the date of the written notice from City, City shall have the right to take such remedial acts it determines to be reasonable to mitigate any impairment of its use of Contractor's Works, products, services and/or deliverables or damages (hereafter referred to as "City's Remedial Acts"). Contractor shall indemnify City for all amounts paid and direct and indirect costs associated with City's Remedial Acts. Failure by Contractor to pay such amounts within ten (10) calendar days of invoice by City shall, in addition to and cumulative to all other remedies, entitle City to immediately withhold payments due Contractor under this Agreement up to the amount paid in connection with City's Remedial Acts. 8. Indemnification - General. Contractor agrees to indemnify and hold harmless the City and its officers, officials, employees and volunteers from and against all claims, damages, losses and expenses including attorneys fees arising out of the performance of the work described herein caused in whole or in part by any willful misconduct or negligent act or omission of the Contractor, any subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable. The parties expressly agree that any payment, attorney's fee, costs or expense City incurs or makes to or on behalf of an injured employee under the City's self-administered workers' compensation is included as a loss, expense or cost for the purposes of this section, and that this section will survive the expiration or early termination of this Agreement. 9. Insurance. Contractor will obtain and maintain policies of commercial general liability insurance, automobile liability insurance, a combined policy of workers' compensation, employers liability insurance, and professional liability insurance from an insurance company authorized to transact the business of insurance in the State of California which has a current rating in the Best's Key Rating guide of at least A-:V in an amount of not less than five hundred thousand dollars ($500,000) each, unless otherwise authorized and approved by the City Attorney or the City Manager. Contractor will obtain occurrence coverage, excluding Professional Liability, which will be written as claims-made coverage. The insurance will be in force during the life of this Agreement and will not be canceled without thirty (30) days prior written notice to the City by certified mail. City will be named as an additional insured on General and Automobile liability. Contractor will furnish certificates of insurance to the Contract Department, with endorsements to City prior to City's execution of this Agreement. 10. Conflict of Interest. City will evaluate Contractor's duties pursuant to this Agreement to determine whether disclosure under the Political Reform Act and City's Conflict of Interest Code is required of Contractor or any of Contractor's employees, agents or subcontractors. Should it be determined that disclosure is required, Contractor or Contractor's employees, agents, or subcontractors will complete and file with the City Clerk those schedules specified by City and contained in the Statement of Economic Interests Form 700. City Attorney Approved Version #04.04.02 11. Compliance With Laws. Contractor will comply with all applicable local, state and federal laws and regulations prohibiting discrimination and harassment and will obtain and maintain a City of Carlsbad Business License for the term of this Agreement. 12. Termination. City or Contractor may terminate this Agreement at any time after a discussion, and written notice to the other party. City will pay Contractor's costs for services delivered up to the time of termination, if the services have been delivered in accordance with the Agreement. 13. Claims and Lawsuits. By signing this Agreement, Contractor agrees it may be subject to civil penalties for the filing of false claims as set forth in the California False Claims Act, Government Code sections 12650, et seq., and Carlsbad Municipal Code Sections 3.32.025, et seq. Contractor further acknowledges that debarment by another jurisdiction is grounds for the City of Carlsbad to terminate this Agreement. 14. Venue and Jurisdiction. Contractor agrees and stipulates that the proper venue and jurisdiction for resolution of any disputes between the parties arising out of this Agreement is the State Superior Court, San Diego County, California. 15. Assignment. Contractor may assign neither this Agreement nor any part of it, nor any monies due or to become due under it, without the prior written consent of City. 16. Amendments. This Agreement may be amended by mutual consent of City and Contractor. Any amendment will be in writing, signed by both parties, with a statement of estimated changes in charges or time schedule. 17. Authority. The individuals executing this Agreement and the instruments referenced in it on behalf of Contractor each represent and warrant that they have the legal power, right and actual authority to bind Contractor to the terms and conditions of this Agreement. CONTRACTOR CITY OF CARLSBAD, a municipal corporation of the State of California By: (Print name/title)City Manager or Mayor ATTEST: (e-mait address) City Attorney Appr'«J»^jn(ter^xnisff04.04.02 If required by City, proper notary acknowledgment of execution by contractor must be attached. If a Corporation. Agreement must be signed by one corporate officer from each of the following two groups. *Group A. "Group B. Chairman, Secretary, President, or Assistant Secretary, Vice-President CFO or Assistant Treasurer Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation. APPROVED AS TO FORM: ROW City Attorney Approved Version #04.04.02 marcom : INTERNET COMMUNICATION AND EMERGING MEDIA A October 30, 2006 City of Carlsbad Web site Pre-production Planning and Consulting Scope of Services The City of Carlsbad is beginning to investigate an update to the public web site. With the introduction of its new content management system for the City, the web site will need be integrated into the CMS. Regardless of a graphical re-design or simply moving existing content into the CMS, the existing web site will require a certain level of redesign in order to be integrated into the CMS. Pre-planning of the architecture and web site content now will save time and money. The capabilities of the CMS will affect how the content will need to interface with it. We will assist with planning for this move, taking it from its present static state to a database-driven dynamic state necessary for a CMS system. This will set the stage for planning: • A web site in which the content is appropriately designed to integrate with your upcoming Content Management System • A web site that is both functional and is organized and presented so that it provides a sense of "place." • A web site that express the unique personality of Carlsbad while serving multiple "audiences" of residents, visitors, business, and potential residents and business. Scope of Services • Evaluation of the requirements of the Carlsbad Content Management System and how it will impact the web site • Identify and make recommendations for specific areas or content within the web site that must be changed to accommodate the CMS • Work closely with Carlsbad IT professionals to identify and streamline web site integration issues, template requirements, etc. • Work with various departments or "content owners" to identify areas they would like to update; provide recommendations and/or planning for their content updates • Recommendations for navigation and architecture upgrades • Recommendations for content organization and/or upgrade • Create a "process document" which will identify necessary and/or recommended changes to the existing web site to make it "CMS ready" as well as who will be the responsible parties for the related content or technical requirements. Web site Pre-Production Planning and Consulting Fee: $5000.00 8101 E. Kaiser Blvd., Suite 150 Anaheim, CA 92808 - 714.283.6200 CERTIFICATE OF EXEMPTION WORKERS' COMPENSATION/EMPLOYERS' LIABILITY INSURANCE _, am the [insert name] [title] \ hereby certify that [name of company] [name of company] has no employees and is not required by law to maintain workers' compensation or employers' liability insurance. Shouldv >'?7 ^fTTS^aje^'r7c/<^ _ employ any person during the term [name of company] of the Agreement with the City of Carlsbad for [description of project or work that is being contracted] then workers' compensation and employers' liability insurance will be obtained. [Title and name of company or corporation]